Law Commission proposes new framework to replace Deprivation of Liberty Safeguards

07 Gorffennaf 2015

Consultation proposes replacing ‘deeply flawed’ system with a new straightforward and accessible legal framework.

Draft proposals for a new framework to protect
the human rights of people in England and Wales who lack the
capacity to consent to their care arrangements have been published
by the Law Commission.

The Deprivation of Liberty Safeguards (DoLS) aim to protect people
who lack mental capacity, but who need to be deprived of their
liberty so they can be given care and treatment in a hospital or
care home. If a person's right to liberty needs to be infringed in
other settings, an authorisation must be obtained from the Court of
Protection.

The DoLS have been criticised since they were introduced for being
overly complex and excessively bureaucratic. In March 2014, a House
of Lords Select Committee published a detailed report concluding
that the DoLS were "not fit for purpose" and recommended that they
be replaced.

A consultation issued today by the Law Commission concludes that
the DoLS are 'deeply flawed'. The consultation provisionally
proposes that they be replaced with a new system, to be called
'Protective Care'. This system is not focused on authorising
deprivations of liberty, but instead upon providing appropriate
care and better outcomes for people who lack mental capacity, and
helping their family and carers.

Recommendations

The Law Commission's consultation proposes that "people who lack
capacity and are living in care homes, supported living and shared
lives accommodation be provided with a set of safeguards intended
to ensure that their accommodation and care and treatment are right
for them. Additional safeguards would then apply if a person
accommodated in these settings requires some restrictive forms of
care or treatment. We suggest that treatment of this kind be
authorised with a minimum of bureaucracy by an independent
professional to be known as an Approved Mental Capacity
Professional.

"A separate scheme of safeguards will apply for those accommodated
in hospital settings and palliative care, and be tailored to
recognise that people's accommodation in these settings is usually
temporary. Safeguards will also apply for those people deprived of
liberty in family homes or other domestic settings, and will
recognise the special sensitivities that surround a person's own
home.

"We also suggest that anyone subject to the Protective Care scheme
should be provided with an advocate to represent their views and
wishes, and that any restrictive treatment and care decisions
should be challengeable in a specialist tribunal, rather than in a
court."

The Law Commission's consultation runs from 7 July to 2 November
2015.